Expert Says Binghamton Fracking Ban is “Legally Dubious”

Robert Alt, a Fellow in Legal and International Affairs at The John M. Ashbrook Center for Public Affairs at Ashland University (Ohio) has written an op-ed article in the Binghamton Press & Sun-Bulletin on the topic of “legally dubious” moratoriums like the one recently passed by the City of Binghamton. Given that according to forthcoming new drilling regulations from the state Department of Environmental Conservation there would be no drilling in Binghamton anyway, Alt asks the question, just what “message” did City Council send?

But what message did they send? That they would prohibit drilling largely in areas where it would otherwise be prohibited? Or, as one business owner in Binghamton lamented at the hearing, "that Binghamton is not open for business?"*

And then he points out:

Binghamton may, however, be open for litigation. Other municipalities that instituted bans, such as Dryden, have found themselves hauled into court, defending their legally dubious positions.

The legal problem is that New York reserves the authority to regulate oil and gas through its Environmental Conservation Law, which is intended to prevent waste, provide for "greater ultimate recovery of oil and gas" and to protect the environment while also protecting the rights of oil and gas leaseholders and landowners. Rather than provide a patchwork of regulation, the DEC and ECL create a comprehensive framework, delving into details such as spacing of location of wells.*

Those who pass municipal bans try to make the argument that a ban is not regulation but simply prohibition. MDN (and Alt) point out that to prohibit something is to regulate it. Therefore, a ban is illegal, it violates laws on the books now. And of course, the taxpayers in municipalities foolish enough to enact a ban will pay to test the legal limits of the laws their elected leaders chose to flout.

It’s well worth your time to read the entire article by Mr. Alt—click on the link below.

*Binghamton Press & Sun-Bulletin (Jan 23, 2012) – Guest Viewpoint: Moratoria on drilling are legally dubious